Los Angeles daily herald., 1887-08-26
DAILY HERALD.
TAX TITLES.
A Decision Rendered by Judge
Gardiner.

Gardiner.
Below will be found an interesting
decision by Judge Gardiner, of the
Superior Court, in an action based on
tax deed. 1t is one more proof, if
such were needed, of the extreme diff
Guilty Of so complying with all the
minute provisions of the statutes as to
make tax title good for the property
sold:
In the Superior Court of Los An
geles, State of California, G. j. Field
VS.. Gustave Miller.
This action, which has been trans
ferred to Department Two for trial, is
brought to secure q decree quieting
plaintiffs alleged title to lots and 8,
in block IA, in V. Fairmount's tract,
this city, and plaintiff relies for proof
of title on tax deed reciting II con-
sideration of ($3.1D three dollars and
eleven cents.
The aifidavits of service of sum-
mons, and other files in the cause,
were not examined by the Court at
time of trial, for the reason that
jury trial of another cause was in
progress, and plaintiffs counsel de-
sired then to introduce his evidence,
leaving questions of jurisdiction and
all other questions open to be passed
upon in the decision of the cause after
trial, and it was by the Court ordered
that counsel for plaintiff file brief
upon the question as to whether, in
actions of this class, constructive SER
vice of summons gives jurisdiction,
and the Court referred counsel to
leading cases in United States Su-
preme and Circuit Courts upon the
subject. The brief subsequently filed
contains no mention of the cases more
directly in point, suggested to counsel
by the Court and the real question of
the cause, namely, is argued only by
the naked statement of counsel
herein, that the present case sis a
real action"
But other features of the record
herein relieves this court from the
necessity of further examination of
authorities upon the question above
mentioned. As to the general pro-
visions of the statute authorizing the
service OF summons by publication,
counsel for plaintiff herein say, "The
statute has been strictly followed"
But an examination of the files here
show the following fragrant violations
of the statutory proceedings: First,
the order of publication of summons,
directed publication in the weekly
HERALD, which was designed by the
court as most likely to give defendant
notice. The affidavit of publication
handed to the Judge of this court by
the counsel for plaintiff, as the proof
of publication on which he relied
shows publication in the daily HERALD
instead of the weekly, and shows that
the copy of the summons so published
did not have the name of plain
tif's attorney endorsed thereon,
whereas the code expressly re-
auires that the name OF plaintiffs
attorney be endorsed on the sum-
mons. Then, too, plaintiffs attorney,
being the same person who made the
affidavit for summons, stated in open
court at the trial that the only knowl-
edge had by him as to the defendants
place of residence was that he had
made inquiry in this city and county
and had failed to find defendant or to
gain any information whatever as to
his place of residence; that, except
such failure to elicit information i'll
this city and county, he knew nothing
of defendants residence. But the af-
fidavit of publication states that de-
fendant is nonresident of the State,
and the order of publication is made |
on the ground of non-residence, and
not upon the ground that defendant
cannot after due diligence, be
found within the State. With
out questioning the sufficiency
of the affidavit which was
passed upon by the very able Judge OF
another department of this court, a
Judge for whose learning and ability |
we have the most profound respect, |
conclude that the statement aforesaid
made by the officer in open court at
the trial shows that he could not have |
known that defendant was a non-resi- |
dent. In fact, am unable to under |
stand how an affidavit that defendant |
is a nonresident, can be made with
out some knowledge as to defendants
present or past place of residence, un-
less, indeed, the affiant have sufficient
knowledge of every resident of this
State to enable him to state that de- |
fendant is not one of those residents. |
While | do not impute to the affiant |
the slightest intention of wrong, l
conclude that his statements ut the |
trial show that he did not have suffi- |
cient information to make the affi-
davit.
For the foregoing reasons plaintiff
is not entitled to judgment in this
trial against defendant.
Il.11